Madhya Pradesh High Court
Krsnaa Diagnostics Pvt. Ltd vs The State Of Madhya Pradesh on 27 February, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
1
THE HIGH COURT OF MADHYA PRADESH
Review Petition No.207/2021
Krsnaa Diagnostics Pvt. Ltd Vs. State of MP & Ors.
Indore, Dated:27.02.2021
Shri Piyush Mathur, learned Sr.Counsel with Shri Manu
Maheshwari, learned counsel for petitioner.
Shri Vivek Dalal, learned A.A.G for respondents/State.
With consent finally heard.
ORDER
By filing this review petition, the petitioner is seeking review of order dated 22/2/2021 passed in WP No.16878/2020. [2] By taking this Court to para 21 to 26 of the order under review learned Sr.Counsel submits that this Court has non suited the present petitioner on a point which was not raised by the respondents and which should have been raised by them. It is submitted that respondents have not taken this stand before this Court that amendment No.2 was issued by HITES which does not have jurisdiction/authority to issue it. The impugned order contains this reason and, therefore, impugned order needs to be reviewed in view of order passed in State of Punjab Vs. Bandeep Singh & Ors. (1998) 9 SCC 254 and Dr. Vikram Singh Vs. Union of India & Ors. (2016) 1 SCC 724.
[3] Tender conditions once revised, the grant of contract has to be decided on the basis of those revised contracts and conditions and previous contract pales into insignificance. Reference is placed on Glodyne Technoserve Ltd. Vs. State of MP & Ors. (2011) 5 SCC 103. [4] It is further submitted by learned Sr.Counsel that the definition of bidding documents shows that HITES was acting on behalf of the Director, Medical Education (DME) and was competent to issue amendment also. The website of HITES also indicates the same 2 which was introduced in tender document itself. The amendment by which revised conditions were prescribed were in fact "clarification". The whole exercise was done by the DME to favour an unsuccessful bidder for impermissible reason.
[5] Shri Dalal, learned A.A.G opposed the said prayer. He also placed reliance on paragraphs of order under review and submits that this Court has not dismissed the petition solely on the ground canvassed in this petition. There are other reasons mentioned in the impugned order. By placing reliance on Haridas Das Vs. Usha Rani Banik (Smt) & Ors. (2006) 4 SCC 78 learned A.A.G submits that there is a distinction between an erroneous decision and a decision which could be characterised as vitiated by "error apparent". Assuming that order passed by this Court is erroneous, it is not vitiated by any "error apparent".
[6] We have heard the learned counsel for parties on this review application.
[7] This Court considered the order dated 27/6/2020 (Annexure R- 2/3) by which reasons for cancellation of tender were spelled out. This Court while reproducing the prayer/existing tender clause in juxtaposition to revised tender clause opined that if both the clauses were same, there was no occasion to provide "revised tender clause in place of existing tender clause". This Court further opined that "in any event, a confusion is created by HITES by introducing the revised clauses". It was further held that "a comparative reading of existing tender clauses and revised tender clause shows that the decision taken in para one of order dated 27/6/2020 is a plausible decision and is not hit by the Wednesbury principle nor it can be treated to be against public interest. Thus, we find force in the argument of ShriDalal that it was not a case where petitioner was non suited for a singular reason. In Anil Kumar Gupta Vs. State of U.P. (1995) 5 SCC 173 the Apex Court considered a glaring illegality which was not raised in the writ 3 petition or was not pointed out by the respondents but is self evident from the record. This Court also considered a self evident illegality which is apparent on bare perusal of order dated 27/6/2020 (Annexure R-2/3). The first reason for scrapping the tender was that there was difference in conditions mentioned in financial tender documents and uploaded/revised documents (amendment No.2) by HITES. In para 3 of same order dated 27/6/2020 (Annexure R-2/3), the DME opined that if contradictory tender is accepted, it may create legal and financial complications in future. This Court opined that this is a plausible view taken by DME.
[8] We do not see any error apparent on the face of record which necessitate the review. The review petition is dismissed.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
Judge Judge
vm
Digitally signed by
Varghese Mathew
Date: 2021.02.27
04:57:06 -08'00'